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United States Court of Appeals,

Fifth Circuit.

No. 96-20027

Marie Therese DAO, Plaintiff-Appellant,

v.

AUCHAN HYPERMARKET, Defendant-Appellee.

Oct. 3, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:

Primarily at issue is whether administrative remedies must be exhausted before an action can

be filed under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Marie Therese

Dao, pro se, appeals the dismissal of her complaint against her former employer, Auchan

Hypermarket. We AFFIRM.

I.

Dao asserted claims under the ADA and for "violation of public policy, breach of good faith

and fair dealing, and defamation of character" under Texas law. The district court granted Auchan's

FED.R.CIV.P. 12(b)(6) motion to dismiss, holding that Dao failed to comply with the administrative

prerequisites for filing an action under the ADA; that the violation of public policy claim did not fall

within the narrowpublic policyexceptionto Texas' employment-at-willdoctrine; that Texas law does

not recognize a duty of good faith and fair dealing in the employer-employee relationship; and that

the defamation claim was not timely filed.

II.

A Rule 12(b)(6) dismissal is reviewed de novo. E.g., Jackson v. City of Beaumont Police

Dept., 958 F.2d 616, 618 (5th Cir.1992). "The dismissal will not be upheld unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to
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relief." Mitchell v. McBryde, 944 F.2d 229, 230 (5thCir.1991)(internalquotationmarks and citation

omitted).

A.

Dao contendsthat the district court erred in holding that she was required to file a charge of

discrimination with the EEOC or the Texas HumanRights Commission prior to filing her ADA claim

in federal court. This is an issue of first impression for our co urt. The other courts that have

considered the issue, however, have reached the same conclusion as did the district court. See

Stewart v. County of Brown, 86 F.3d 107, 110 (7th Cir.1996) ("In order to recover for violations of

Title I of the ADA, a plaintiffmust file a charge of discrimination with the EEOC within 180 days of

the alleged violation (if he does not file an initial charge with a state agency)"); McSherry v. Trans

World Airlines, Inc., 81 F.3d 739, 740 n. 3 (8th Cir.1996) (noting that ADA incorporates by

reference the powers, remedies, and procedures set forth in Title VII, which requires employees

claiming discrimination to file a charge with the appropriate administrative agency, and barssuits until

the employee has received a right-to-sue letter); Luna v. Walgreens, 888 F.Supp. 87, 88

(N.D.Ill.1995) (filing discrimination charge with EEOC is condition precedent to filing ADA action

in federal court); Bishop v. Okidata, Inc., 864 F.Supp. 416, 424 (D.N.J.1994) (procedure of filing

charge with EEOC and receiving right-to-sue letter before bringing an ADA action is not

jurisdictional, but plaintiff"must exhaust these administrative remedies before suing infederalcourt");

Osborn v. E.J. Brach, Inc., 864 F.Supp. 56, 58 (N.D.Ill.1994) (before filing ADA action against

employer, employee must file timely EEOC charge and receive right-to-sue letter); James v. Texas

Dept. of Human Services, 818 F.Supp. 987, 990 (N.D.Tex.1993) (ADA plaintiff's administrative

remedies will be deemed exhausted upon her receipt of right-to-sue letter from Texas Human Rights

Commission and submission of letter to court).

We join those courts in holding that an employee must comply with the ADA'tion in federal

court against her employer for violation of the ADA. As the district court correctly noted, the ADA

incorporates by reference the procedures applicable to actions under Title VII, 42 U.S.C. § 2000e,
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et seq. It provides:

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, and

2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides

to the Commission, to the Attorney General, or to any person alleging discrimination on the

basis of disability in violation of any provision of this subchapter.

42 U.S.C. § 12117(a).

Section 2000e-5(e)(1) providesthat, before a plaintiffcancommence a civil action under Title

VII in federal court, she must file a timelycharge with the EEOC, or with a state or local agency with

authority to grant or seek relief from the alleged unlawful employment practice. 42 U.S.C. § 2000e5(e)(1); see, e.g., Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 863 (5th Cir.1983)

(although filing of EEOC charge is not a jurisdictional prerequisite, it "is a precondition to filing suit

in district court"). And, § 2000e-5(f)(1) provides that a civil action must be commenced "within

ninety days" after the charging party has received a "right-to-sue" letter from the EEOC or state or

local agency. 42 U.S.C. § 2000e-5(f)(1); see Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120

(5th Cir.1980).

It is undisputed that Dao did not file a disability discrimination charge with the EEOC or with

a state or local agency. Accordingly, t he district court did not err by dismissing her ADA claim.

(Dao's motions for court-appointed counsel and to supplement the record, and Auchan's motion to

strike Dao's additional evidence, are DENIED.)

B.

We affirm the dismissal of Dao's state law claims for the reasons stated by the district court.

Dao v. Auchan Hypermarket, No. H-95-2619 (S.D.Tex. Dec. 5, 1995) (unpublished).

III.

For the foregoing reasons, the judgment is

AFFIRMED.